On May 12, 2016, a Federal Court in Florida refused to dismiss a lawsuit alleging that Google’s various statements about its search results, including that “[i]t is Google’s policy not to censor search results,” are false, deceptive and misleading. 1
The case pits Florida company E-Ventures Worldwide, LLC against the search giant. The chief complaint is that Google, contrary to its public pronouncements, made all of the company’s websites disappear from all possible Google search results. 2 Since Google controls 70% of the U.S. search market and 90% of the European search market, 3 this is equivalent to making the websites virtually disappear from the internet.
In September of 2014, Google manually removed 231 of Plaintiff’s websites from its search results.
“As a result of Google’s removal of E-ventures websites, [its] websites could not be located on Google.com the world’s most widely used search engines.” 4
“E-ventures websites were not only removed from Google.com’s search results, but were also removed from all [G]oogle affiliated websites and from third party websites participating in Google’s advertising program.” 5
In that event, the only way you could find them, was to know the exact URL of the website.
Because if Google says you don’t exist, you don’t exist, do you?
This continued even with new websites produced by E-ventures after the initial takedown, ultimately totaling 365 discrete websites. 6
Why would Google do such a thing?
Google says it was because the websites were “pure spam.” 7
E-ventures says it was to eliminate a competitor. 8
E-ventures provides SEO, or search engine optimization. This is where the data and meta-data on your website is manipulated to place you at the top of Google’s search results. Google will also place you at the top of search results, for a fee paid to Google. If E-ventures gets you the top spot, Google gets nothing. So, by eliminating E-ventures as a competitor, Google hopes it would get more people to pay Google for the top spot. 9
Google’s response is that their search results are “opinions” 10 and “editorial judgements” 11 which are “incapable of being proven true or false” 12 and therefore protected by the principles regarding free speech as guaranteed by the First Amendment. It is hard to dispute this point, and the Court in its opinion agrees with this principle. 13
The problem is that E-ventures is not suing based upon the search results, it is suing over what Google says about its search results. It is those public pronouncements that E-ventures claims are “false, deceptive and misleading.” 14
There are two statutes at play here. The first is the section of the Trademark Act, a/k/a the Lanham Act, dealing with false statements made in the furtherance of commerce. 15 That section provides in part that:
“Any person who, on or in connection with any goods or services…uses in commerce any…false or misleading description of fact, or false or misleading representation of fact which…is likely to deceive as to…commercial activities by another person…shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”
E-ventures also alleges violations of Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”). 16 Under the FDUPTA:
“A deceptive act may be found when there is a “representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” 17 (citation omitted). Further, an “unfair practice is one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” 18 (citations omitted).
E-ventures lists eight problem statements in the complaint. I have honed in on three that jumped out at me.
- “Google’s index merely reflects that the page exists on the wider web.”
- “Google search results are a reflection of the content publicly available on the web.”
- “It is Google’s policy not to censor search results. However, in response to local laws, regulations, or policies, we may do so.” 19
We well know that Google does censor search results, when it finds it profitable to do so. As I have written before, Google blacklists 10,000 sites a day, for various reasons. 20 In fact, in that blog post, I mentioned the E-ventures case in particular:
“Now under certain circumstances, the sending of “spam” is illegal. But once again, copyright infringement is illegal as well. And again, Google takes active steps to blacklist “spam” websites, but not those that engage in copyright infringement.” 21
And also here: 22
“According to this money.cnn.com article, this is what Google really does
“… In Turkey, Google takes down links to sites that defame the country’s founder, Mustafa Kemal Ataturk — that’s illegal there. In Thailand, denigrating the Thai monarch is against the law, so Google blocks YouTube videos in Thailand that ridicule King Bhumibol Adulyadej.” 23
So how can you say you have a “policy not to censor search results” when you do in fact censor search results? The result is an oxymoron:
“It is Google’s policy not to censor search results, except when we do censor search results.”
For its part, the Court ruled:
“Here, plaintiff has alleged that Google removed its websites from its search results for anticompetitive and punitive reasons.” 24
“Plaintiff has adequately alleged that it did not violate any of Google’s policies and that the representations made by Google that E-ventures’ pages violate Google’s policies are false. Whether or not plaintiff can support these assertions and carry its burden at a later stage of the proceedings is for a different day.” 25
“[A] fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution.” 26
Google has 14 days to further respond. 27
P.S. Google re-enabled all of E-ventures web sites to Google search results after E-ventures filed suit. 28 Which begs the question, do they or don’t they violate Google’s policies?
- E-VENTURES WORLDWIDE, LLC, v. GOOGLE, INC. Case No. 2:14-cv-646-FtM-29CM, 2016 WL 2758889 ↩
- Id. at 3 (all citations are to the original pagination) ↩
- Id. at 2 ↩
- Id. at 5 ↩
- Id. at 5 ↩
- Id. at 4 ↩
- Id. at 3-4 ↩
- Id. at 3 ↩
- Id. at 2-3 ↩
- Id. at 14 ↩
- Id. at 16 ↩
- Id. at 15 ↩
- Id. ↩
- Id. at 7 ↩
- § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). ↩
- § 501.201-.213, Fla. Stat. (2002) ↩
- PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) ↩
- Id. ↩
- E-VENTURES WORLDWIDE, LLC, v. GOOGLE, INC. at 7 ↩
- Google Blacklists 10,000 Sites a Day; Why Doesn’t It Blacklist Pirate Sites? ↩
- Id. ↩
- Copyright Blog Update: The Future of the Georgia State Case, Google Censors the Internet (When it’s Profitable) and Active Nashville Songwriters Drop 80% ↩
- Google: The reluctant censor of the Internet ↩
- E-VENTURES WORLDWIDE, LLC, v. GOOGLE, INC. at 22 ↩
- Id. at 17 ↩
- Id. at 16-17 ↩
- Id. at 28 ↩
- Id. at 6 ↩